1787

1. Alexander Hamilton wrote that, “The judiciary …will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” Wait a second, what did Hamilton just say? Could you please translate the preceding Hamilton quote into a 140-character Tweet:

2. Do you agree with Hamilton that the judiciary is the least dangerous branch?

3. And if Hamilton is correct that the judiciary is the lest dangerous branch, in your humble opinion, what is the most dangerous branch?

4. And could you prove it with a fact or two, please:

5. Furthermore…sayeth Hamilton, “The judiciary has no influence over either the sword or the purse. It may be said to have neither FORCE nor WILL but merely judgment,” What does Hamilton mean by the “sword” and the “purse”?

6. And what is that FORCE and WILL stuff and why did he capitalize it (he really did)?

7. Hamilton goes on to write, that the power of the judiciary, “must depend upon the aid of the executive arm even for the efficacy of its judgments.” What does that mean?

8. And once you figure out what that quote means, do you think Hamilton is correct?

9. How much power would the judiciary have if there were no executive branch?

10. But wait, Hamilton’s not done…“It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power.” Based on the checks and balances written into the Constitution, and the actual contemporary behavior of the government, do you agree with Hamilton’s assessment in his preceding quote?

11. Now Hamilton’s going to get off the relative powers of the branches riff and get to the part about an independent judiciary. He writes, “Nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution.” What does independence mean?

12. What is Hamilton arguing for here, and do you agree with him?

13. In your opinion, what would happen if we had elections for Supreme Court Justices?

14. Now Hamilton turns his attention to another aspect of the judiciary…“The complete independence of the courts of justice is peculiarly essential in a limited Constitution…which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” What practice of the federal courts does this argument support?

15. “A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be anirreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” According to the quote by Hamilton above, when laws and the constitution collide, who wins?

16. “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” According to Hamilton, who should be the keeper of the constitutional conscience?

17. According to Hamilton, which is more valid and important, laws or constitution?

18. According to Hamilton, what should judges do when laws stand in opposition to the Constitution?

19. In your opinion, does all of this empower judges and the judiciary too much?

20. Use a direct quote from Federalist 78 to answer the following. Why, Mr. Hamilton, should judges serve for life?

21. Use a direct quote from Federalist 78 to answer the following. What, Mr. Hamilton, should happen when laws are un-Constitution?

22. If you rewrote the Constitution today (don’t do it), how would you change the judiciary?

23. Overall, does Hamilton’s argument convince you?

24. When the Supreme Court recently ruled that laws limiting same-sex marriage are unconstitutional there was a backlash from many people who said that the justices were, “making law.” What would Hamilton say to that?